D. Mohandas v. Union of India and Senior Superintendent RMS TV Division, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939 **O.P (CAT).No. 190 of 2016** AGAINST THE ORDER IN OA 659/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 15-09-2015 ## PETITIONERS/RESPONDENTS: 1 THE SENIOR SUPERINTENDENT RMS TV DIVISION, THIRUVANANTHAPURAM-695001 2 UNION OF INDIA REPRESENTED BY THE CHIEF POSTMASTER GENERAL KERALA CIRCLE,THIRUVANANTHAPURAM-695033 BY ADV.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL RESPONDENT/APPLICANT: D.MOHANDAS MULTI TASK EMPLOYEE(MTS), HEAD RECORD OFFICE, RMS TV DIVISION, THIRUVNANTHAPURAM-695001, RESIDING AT HOUSE NO. 50, CHEMPAKASSERY NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004 BY ADV. SRI.S.VISHNU THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 01-02-2018, ALONG WITH OP. (CAT)NO.65 OF 2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 190 of 2016 (Z) **APPENDIX** ## PETITIONERS' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE OA NO. 659/13 DT 29/6/13 FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH. EXHIBIT :2 TRUE COPY OF THE REPLY STATEMENT DT. 26/9/13, FILED BY THE PETITIONERS. EXHIBIT :3 TRUE COPY OF THE REJOINDER DT. 12/1/14, FILED BY THE RESPONDENT. EXHIBIT :4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DT. 21/2/15, FILED BY THE PETITIONERS. EXHIBIT :5 TRUE COPY OF THE COMMON ORDER IN OA NO. 659/13 DT 15/9/15 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL , ERNAKULAM BENCH. /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & MARY JOSEPH, JJ.** .............................................................................. ## **O.P(CAT)Nos. 190 OF 2016 &** ## **65, 77, 123, 164, 173** ## **270 & 278 OF 2017.** ......................................................................... **Dated this the 1[st] February, 2018** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The main issue involved in all these Original Petitions is with regard to the directions given by the Tribunal to reckon the notional service, with reference to the appointment effected from the date of occurrence of the vacancy, for the purpose of granting increments as well. It is based on the observations/directions given by the Tribunal on an earlier instance, while dealing with the offence of contempt alleging noncompliance of the direction given earlier in the O.A. 659 of 2013. O.P(CAT)No.190 of 2016 is taken as the lead case . 2. Heard the learned Asst. Solicitor General and also the learned counsel appearing for the party respondents. ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **2** 3. The respondent/applicant was initially engaged as Gramin Dak Sevak (GDS), who commenced the service with effect from 01.07.1991. While he was continuing as above, the Department of Personnel and Training issued an O.M. in the year 2002, whereby a ban was imposed with regard to the Direct Recruitment stipulating that approval of the Screening Committee was required for the post in question. By virtue of such a stipulation and the ban on direct recruitment, appointment was not being effected for a long time. This is more so since, according to the Department, for giving appointment as Postman/ Group D, from GDS, it was not an instance of promotion, but a matter of direct recruitment, for which approval of the Screening Committee was necessary. It was in the said circumstance, that the vacancies which arose from 2002 to 2009 were left unfilled . 4. The course pursued by the Department in not filling up the vacancies to the post of Postman/Group D caused serious heart-burn to the employees who approached the Tribunal by filing various O.As including O.A.No.312/2008. The prayer was mainly to fill up the vacancies, pointing out that appointment to the post of Postman/Group D was only by way of promotion and ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **3** not amounted to any Direct Recruitment where approval of the Screening Committee was required. The prayer was resisted from the part of the Department. After hearing both the sides, the Tribunal made a declaration that appointment to the post of Postman/Group D was not direct recruitment, but promotion and accordingly, the Department was directed to fill up the vacancies. There was no direction to grant any consequential benefit, but for the direction to fill up the posts with reference to the date of occurrence of the vacancies. The Department felt aggrieved of the said direction, who approached this Court by filing WP. (C)No.34512 of 2009 and connected cases, where interference was declined and the writ petitions were dismissed as per the judgment dated 23.12.2009, in turn confirming the order passed by the Tribunal. It was accordingly that the matter was considered and the vacancies were filled up by the Department leading to the orders like Annexure A3 dated 16.07.2010, whereby retrospective appointment was given with effect from the date of occurrence of vacancies; however making it clear that it will be strictly notional and that such notional service will not be counted for any other benefits than pension, since the ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **4** appointments were being made as a 'one time measure'. The said order has become final and has not been subjected to challenge . 5. Much later, the respondent/applicant approached the Tribunal by filing the O.A.659 of 2013 with the following prayers: _“1. Direct the respondents to consider granting pay and allowances from the date of occurrence of vacancy in view of the fact that applicant has been appointed retrospectively from the date of occurrence of vacancies._ _2. Direct the respondents to count services of the applicant in the cadre of MTS from 01.06.2006 for all purposes including pay and allowances and annual increments:_ _3. Direct the respondents to consider granting the same relief as granted to Sri Sreevalsan Thampy in Annexure A1 and A2 with all consequential benefits._ _4. Call for the records leading to the issue of Annexure A6 and set aside Annexure A6._ _5. Call for the records leading to the issue of Circle Office letter No.CO/LC/OA/32/08 dated 8.7.2010 and set aside the same to the extent the same directs notional appointment retrospectively without pay and allowances. 6. Direct the respondents to fix the pay of the applicant as on 19.7.2010 taking into account 4 annual increments due from 1.6.2006 onwards and regulate the payments due to_ ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **5** _the applicant accordingly._ _7. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice._ _8. Award the cost of these proceedings.”_ 6. Ext.P2 is the Reply Statement filed by the Department opposing the reliefs sought for, to which Ext.P3 rejoinder was filed by the applicant. This led to Ext.P4 additional reply statement . The said O.A. was considered along with other cases. The Tribunal passed Ext.P5 common order, whereby it was held that the promotion will be on notional basis w.e.f. the date of notional promotion as Group D and that it will be counted for consequential benefits including fixation of pay, seniority, pension and pensionary benefit. The operative portion of the verdict as contained in paragraphs 10 and 11 reads as follows: _“10. Annexure A9 indicates 3 vacancies but does indicate the reservation or otherwise status of these vacancies. Thus it is ordered that the applicants in these cases be promoted on notional basis on the basis of seniority, against available abolished vacancies which stood automatically revived as affirmed in CP(C) 95/09 and as per roster point applicable. The date of regular appointment will be_ **6** ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ _the date of availability of vacancies as ordered in O.A.649/11. The promotion will be on notional basis with effect from date of notional promotion as Group D and will count for consequential benefits including fixation of pay, seniority, pension and pensionary benefits. Such fixation of pay would however be actual, after catering for annual increment as per rules, from the date of notional promotion. The principle of “no work no pay” would apply as regards non-entitlement of arrears for the period covering notional promotion i.e. upto the date when applicants actually took charge of post. Applicants in these cases be promoted with effect from the date of promotion of their immediate junior in the gradation list._ _11. Since the applicants are being given the benefit of notional promotion with effect from date of occurrence of notional vacancy, the payment of severance allowance will cease from the date they are notionally promoted as they cannot be granted the dual benefits of two different posts at the same time.”_ 7. The above order is under challenge in this Original Petition, mainly pointing out that no direction could have been given by the Tribunal to have the notional service reckoned for the purpose of granting increments and that it could only be counted for the purpose of pension, wherever it is applicable (i.e. ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **7** in respect of persons who were appointed prior to 01.01.2004, where the CCS (Pension) Rules are attracted and in respect of appointment after 01.01.2004, the same is to be dealt with as per the new Pension Scheme). 8. The learned Central Government Counsel points out that 'granting of increment' can only be in terms of FR 26(a), which reads as follows: _“(a) All duty in a post on a time-scale counts for increments in that time-scale:_ _Provided that, for the purpose of arriving at the date of the next increment in that time-scale, the total of all such periods as do not count for increment in that time-scale, shall be added to the normal date of increment”_ In none of these cases, the applicants had ever worked on duty, even for a single day in a particular scale, so as to earn increments. That apart, there was no direction given by the Tribunal, when the verdict was passed in O.A. 312/2008 and connected cases to grant increment in respect of the notional service w.e.f. the date of occurrence of vacancies, though notional appointment was ordered retrospectively w.e.f. that date. It is further pointed out that the very basic order passed ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **8** by the Tribunal i.e. in O.A. 312 of 2008, the stand of the Department was repelled and the benefit was ordered to be extended holding that appointment to the post of Postman/Group D was by way of 'promotion' and not by direct recruitment. The said declaration has lost sanctity by virtue of the law declared by the Supreme Court on the point as per the verdict reported in _**Y.Najithamol and others vs. Soumya S.D and ors**_ **[ 2016 (4) KHC 280]** holding that the category of GDS stands outside the service in the Department and as such, appointment to the category of Postman/Group D from GDS will not amount to promotion, but direct recruitment. 9. It is pointed that, on an earlier instance, the Department had approached this Court by filing the O.P(CAT)170 OF 2015 arising from O.A. 145 of 2010, wherein interference was declined, referring to the verdict already passed in O.P(CAT)4162 of 2013. Challenging the said verdict dated 26.10.2015, the Department had moved the Apex Court by filing SLP (SLP No.31917 of 2017). When it was brought to the notice of the Supreme Court as to the declaration of law by the Supreme Court in **2016(4)KHC 280** ( _**Y.Najithamol and others vs. Soumya S.D and ors,**_ the ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **9** petitioner/Department was permitted to move this Court by way of appropriate proceedings with reference to the said ruling and reserved the right to approach the Supreme Court again, in case any necessity occurred. It is stated that a Review Petition has already been filed based on the liberty granted by the Supreme Court, which however is still to come up before this Court. 10. Incidentally, the learned counsel appearing for the respondents/applicants brought it to the notice of this Court that in exactly similar matters, interference has been declined by this Court as per the verdict in OP. (CAT) 76 of 2016 and 207 of 2016. The said verdict was a common one passed on 27.07.2016. Eventhough an SLP was preferred (ie. SLP 11647 OF 2017) against the verdict in O.P(CAT)207 of 2016, it came to be dismissed, after condoning the delay and as such, no interference is warranted, according to the learned counsel. But the fact remains that the verdict passed by this Court in OP(CAT)76 and 207 of 2016 [authored by one of us i.e. PRRM (J) sitting with AKN(J)] was on 27.07.2016, i.e. prior to the declaration of law by the Apex Court as per the verdict in _**Najithamol's case**_ (cited supra), and at any rate before passing the order dated ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **10** 17.11.2017 by the Supreme Court while dealing with the SLP ( i.e., SLP.31917 of 2017) preferred against the verdict in OP(CAT)170 of 2015. It is also brought to the notice of this Court by the learned Standing Counsel that a Review Petition has already been filed before the Apex Court in respect of the order in SLP arising from O.P.(CAT)207 of 2016, referring to the verdict passed by the Supreme Court in _**Y.Najithamol and others vs. Soumya S.D and ors. [**_ **2016(4)KHC 280].** 11. The learned counsel appearing for the respondents/applicants submits that the verdict passed by the Supreme Court in _**Y.Najithamol and others vs. Soumya S.D and ors (cited supra)**_ is not having any application to the case in hand. The learned counsel submits that the verdict in O.A. 312 of 2008 was passed referring to various other orders passed by the Tribunal at different points of time, which are stated as affirmed by this Court. The operative portion of the said verdict has been extracted in Ext. R1 verdict, which reads as follows: _“64. In view of the above , all the O.As are allowed in the following terms. It is declared that there is absolutely no need to seek the clearance of the Screening Committee to fill up the vacant posts in various Divisions_ **11** ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ _which are to be filled up from out of G.D.S. and Casual Labourers as per the provisions of the Recruitment Rules, 2002. Respondents are directed to take suitable action in this regard, so that all the posts, majority of which appear to be already manned by the G.D.S themselves working as 'mazdoors' at extra cost, are duly filled. In a few cases (e.g. OA118/2008), the claim of the applicants is that they should be considered against the vacancies which arose at that time when they were within (fifty) years of age. In such cases, if the applicants and similarly situated persons were within the age limit as on the date of availability of vacancies, notwithstanding the fact that they may by now be over aged, their cases should also, if otherwise found fit, be considered subject, of course, to their being sufficiently senior for absorption in Group D post. If on the basis of their seniority, their names could not be considered due to limited number of vacancies and seniors alone could considered for appointment against available vacancies, the respective individuals who could not be considered be informed accordingly. Time calendared for compliance of this order is nine months from the date of communication of this order.”._ 12. With reference to the above specific direction, the learned CGC points out that no relief to have increments also granted with reference to the notional service, is flowing from the direction given by the Tribunal on 15.12.2008 in O.A.No.312/2008 and connected cases. The learned counsel for ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **12** the applicants submits that what has now been awarded in Ext.P5, directing to effect fixation of pay in respect of the notional service, also reckoning the increments, is well based on the orders already passed by the Tribunal in various Contempt of Court Proceedings alleging non-compliance of the directions given earlier. A copy of the said common order dated 29.07.2011 has been produced as Ext.R1. Paragraph 19 of the said order reads as follows: _“Thus respondents are not reluctant at all in fully complying with the order of this Tribunal. Now that the vacancies do exist and eligible persons available for being accommodated, their promotion could comfortably be executed subject to other provisions of law relating to age as well as seniority position. These promotions would then be with retrospective effect but on notional basis so that those who are promoted would have the benefit of that many years of service for the purpose of pension. Pay could however be actual (after catering for annual increment as per the rules from the date of initial notional promotion) from the date the individuals function the promotional post.”_ 13. It is true that there is a direction in Ext.R1 for reckoning the pay, also based on the annual increment as per the rules, from the date of notional promotion. But such a ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **13** direction is not seen in the verdict passed in the Original side,, the operative portion of which has already been extracted in the opening paragraph of Ext.R1. Then the question is whether the direction given by the Tribunal on the original side could be widened by a subsequent order in a contempt of court proceedings. The said question had come up for consideration before the Apex Court and has been answered in the 'negative', as per the decision in **AIR 2004 SC 4277(Prithawi Nath Ram vs. State of Jharkhand and others).** It has been stated by the Apex Court that the point to be examined in a contempt of court proceedings is whether the direction already given has been complied with or not and if there is any wilful disobedience to constitute a contumacious act, to have the contemnor to be punished for the offence of contempt. It can neither widen the direction nor reduce the rigor in any manner or substitute the same. 14. The learned counsel for the applicants points out that such a direction has been issued based on Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987, which reads as follows: **14** ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ _“24. Conditions as to making of interim orders:Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless-_ _(a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and_ _(b) opportunity is given to such party to be heard in the matter;_ _Provided that a Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order.”_ A mere reading of the Rule is enough to hold that the purpose of Rule 24 is entirely different, which is only to give effect to the proceedings and the orders passed by the Tribunal. The order ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **15** passed by the Tribunal is the order passed on the original side, which could not be varied or modified in any manner by a subsequent order in a contempt of court proceedings, more so in view of the law declared by the Supreme Court as aforesaid, which is the law of the land by virtue of Article 141 of the Constitution of India. There cannot be any rule contrary to the mandate of the Constitution or the law declared by the Supreme Court and as such, the purpose of Rule 24 is something else and is not to be understood in the way as sought to be interpreted by the learned counsel for the applicants. 15. As mentioned already, the cases which are already disposed of by this Court, declining interference were mostly rendered earlier i.e. prior to declaration of law by the Apex Court or without taking note of the law declared by the Apex Court. There is of course a contention for the applicants that, the petitioners having chosen to appoint the respondents/applicants notionally with effect from the relevant date as given in the appointment order, they cannot go back from the appointment order and that the appointment so given cannot be altered in any manner. We accept the said proposition and hold that the ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **16** notional appointment given to the respondents/applicants will continue to hold the field. The question is only with regard to granting of 'increments' as now ordered by the Tribunal in Ext.P5. 16. In O.P.(CAT) 173 of 2017 and also in O.P.(CAT) 270ofF 2017, the direction given by the Tribunal is to have appointment with effect from the date of occurrence of the vacancies, which was prior to 01.01.2004, in turn to cause reckoning the said service for the purpose of granting the pensionary benefits, as per the CCS(Pension) Rules. There is no direction to grant the benefit of any increment in the said case; nor has the benefit of increment been claimed by the respondents/applicants, as submitted by the learned counsel appearing for the respondent/applicant in OP.(CAT)173 of 2017. However, the specific case projected by the learned Central Government Counsel is that by virtue of the law declared by the supreme Court in _**Y.Najithamol and others vs. Soumya S.D and ors (cited supra),**_ no notional appointment could be effected w.e.f. the date as claimed by the applicant but for the date reckoned by the Department and as such, the persons may not be eligible ## _**O.P(CAT)Nos. 190 OF 2016 & connected cases**_ ## **17** to get the benefit of CCS (Pension) Rules. Whether _**Y.Najithamol's**_ case could be made applicable with reference to the facts pleaded and if any relief could be given and if so, to what extent, are also matters which could be decided by the Tribunal with reference to the law declared by the Supreme Court in _**Y.Najithamol**_ 's case, as jurisdiction of this Court is to examine the correctness of the decision rendered by the Tribunal at the first instance, to be subjected for scrutiny under Article 227. We find it appropriate to cause the matter to be reconsidered by the Tribunal in the light of the above observations, after hearing the parties. So as to facilitate such an exercise, the orders under challenge are set aside and the matters are remanded for fresh consideration. It is open for the parties to supplement the pleadings and prayers and also produce additional documents, if any. ## **P.R. RAMACHANDRA MENON, JUDGE** ## **MARY JOSEPH, JUDGE** lk